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Israel
THE CONSTITUTIONAL FRAMEWORK
The Declaration of the Establishment of the State of Israel,
proclaimed by the Provisional Government and the Provisional Council
of State on May 14, 1948, mentions a draft constitution to be
prepared by a constitutional committee and to be adopted by an
elected constituent assembly not later than October 1, 1948. After
convening on February 14, 1949, the Constituent Assembly, however,
instead of drafting a constitution, on February 16 converted itself
into a legislative body (the first Knesset) and enacted the Transition
Law, commonly referred to as the "small constitution." The Constituent
Assembly could not agree on a comprehensive written constitution,
primarily for fear that a constitution would unleash a divisive
conflict between religious and state authorities, a fear that
continued to exist in late 1988. The ensuing parliamentary debate,
from February 1 through June 13, 1950, between those favoring
a written constitution and those opposing it was a microcosm of
the conflict between state and religious interests that would
continue to agitate Israeli political life.
Proponents argued that under a bill of rights incorporated into
a constitution Israel would benefit from the experience of other
nations that had adopted written safeguards to ensure religious
freedom, minority rights, equal rights, and civil liberties. A
written constitution, they asserted, would also safeguard the
principle of the separation of powers and, in a period of rapid
immigration, referred to in Israel as the "ingathering of exiles,"
would be a unifying factor, unequivocally establishing the supremacy
of civil law.
Opponents contended that the domestic and external circumstances
of Israel in 1949 were not auspicious for the adoption of a constitution.
They stressed that a written constitution would be politically
divisive because the controversial issue of the boundaries between
state and religion would inevitably be raised in formulating the
principles, goals, and nature of the state as codified in a constitution
(see The Role of Judaism , ch. 2). Prime Minister David Ben-Gurion,
the leading opponent of a written constitution, maintained that
the Proclamation of Independence, however great an event, was
merely the beginning of a long process in Israel's evolution as
a democratic state and not "the redemption." Perhaps most significantly,
Ben-Gurion and Mapai (Mifleget Poalei Eretz Ysrael, Israel Workers'
Party--see Appendix B), the Labor Party's predecessor, had already
formed an alliance with Orthodox religious parties by entering
into a "historical partnership" with Mizrahi (Spiritual Center--see
Appendix B) in 1933. As part of the Mapai- Mizrahi agreement of
June 19, 1947, they obtained unity among the various groups in
the Yishuv (the prestate Jewish community) by promising the leaders
of the ultra-Orthodox Agudat Israel (Society of Israel--see Appendix
B) that the status quo on issues involving state and religion
would be maintained in the new state. Some observers felt that
Ben-Gurion and other Labor leaders grossly underestimated the
long-term consequences of delaying resolution of the role of religion
in a modern Jewish state. In later years, the Orthodox-dominated
Ministry of Religious Affairs, Ministry of Interior, rabbinate,
rabbinic courts, and municipal religious councils gained a virtual
monopoly in patronage and resources over Israel's organized Jewish
religious institutions to the detriment of the more moderate Conservative
and Reform movements of Judaism. As a consequence of the resurgence
of right-wing fundamentalist religious movements, the influence
of secular elements in Israeli society, especially of Labor and
its allies, was ultimately diminished.
The Israeli solution to the lack of a constitution has been a
"building-block" method. In June 1950, the Knesset passed a compromise
resolution, known as the "Harari decision" (named after Knesset
member Izhar Harari), approving a constitution in principle but
postponing its enactment until a future date. The resolution stated
that the constitution would be evolved "chapter by chapter in
such a way that each chapter will by itself constitute a fundamental
law." It stipulated: "The chapters will be submitted to the Knesset
to the extent to which the Committee [for Constitution, Law, and
Justice of the Knesset] completes its work, and the chapters will
be incorporated in the constitution of the State." By 1988 nine
Basic Laws had been enacted to deal with the Knesset (1958), Israeli
Lands (1960), the Presidency (1964), the Government (1968), the
State Economy (1975), the Army (1976), Jerusalem (1980), the Judiciary
(1984), and Elections (1988). These Basic Laws, transcending regular
legislation, may be amended or changed only by a special majority;
in most cases the majority required is at least 80 members of
the 120-member Knesset. Moreover, to ensure the country's stability,
the Basic Laws may not be amended, suspended, or repealed by emergency
legislation.
Apart from the nine Basic Laws, as of the end of 1988 there were
a number of ordinary laws that legitimized the structure, functions,
and actions of state institutions. These ordinary statutes were
intended eventually to take the form of Basic Laws, presumably
with appropriate revisions to account for changing needs and circumstances.
Among these laws were the Law of Return (1950), Nationality Law
(1952), the Judges Law (1953), the State Education Law (1953),
the Courts Law (1957), the State Comptroller Law (1958), and the
Knesset Elections Law (1969). Legislation such as the Law of Return,
the Nationality Law, and the State Education Law sought to resolve
fundamental secular-religious disagreements. In the judgment of
most Israeli observers, however, the enactment of such laws did
not resolve fundamental controversies because Orthodox figures
later sought to overturn them. For example, in 1988 the government
was engaged in a legislative struggle involving renewed attempts
by Orthodox religious parties to amend the 1950 Law of Return,
the country's basic immigration law, by granting Orthodox religious
authorities exclusive power to decide who is Jewish and to exclude
people who had converted to Judaism through the Reform or Conservative
movements. On June 14, 1988, the Knesset defeated two such bills
by votes of sixty to fifty-three and sixty to fifty-one.
The question of human rights and civil liberties has been an
important concern of all Israeli governments. It is reflected,
for instance, in the Declaration of the Establishment of the State
of Israel, sometimes considered analogous to the United States
Declaration of Independence. The Israeli declaration reads in
part: "The State of Israel will . . . foster the development of
the country for the benefit of all its inhabitants; it will be
based on freedom, justice, and peace as envisaged by the prophets
of Israel; it will ensure complete equality of social and political
rights to all its inhabitants irrespective of religion, race or
sex; it will guarantee freedom of religion, conscience, language,
education and culture." The declaration contains sections that
were intended to grant constitutional authority for the establishment
and operation of state organs during the immediate postindependence
years. Apart from that legal significance, however, the declaration
lacks the status of a formal constitution against which the legality
of other enactments can be tested. This is especially true regarding
the issue of fundamental civil rights.
In the absence of an expressed bill of rights, Israeli governments
have relied on the court system to safeguard civil rights and
liberties. Israeli citizens have enjoyed a large measure of civil
rights as a result of high standards of fairness in the administration
of justice in Israel proper. Nonetheless, certain infringements
have been caused by the dictates of internal security (see Israeli
Arabs, Arab Land, and Arab Refugees , ch. 1). According to a United
States Department of State report on human rights practices in
Israel released in February 1988, "Israel is a parliamentary democracy
which guarantees by law and respects in practice the civil, political,
and religious rights of its citizens . . . As in the past, the
most significant human rights problems for Israel in 1987 derived
from the strained relations between the Israeli authorities and
some Israelis on the one hand and the Arab inhabitants of the
occupied territories on the other hand."
A number of attempts have been made to introduce proposals for
a detailed constitution. The latest occurred in August 1987, when
the Public Council for a Constitution for Israel, a group of Tel
Aviv University professors led by Uriel Reichman, dean of its
faculty of law, launched a campaign to enact a constitution. The
group argued that the existing Basic Laws were not tantamount
to a constitution because such topics as judicial review and a
bill of rights were not covered and because most of the Basic
Laws were regular laws that could be amended by a simple majority
vote of the Knesset. A written constitution, in contrast, would
spell out the relationship among the different branches of government
and establish a type of secularized bill of rights between the
individual and the state. The group advocated three necessary
reform measures as essential for a democratic and constitutional
state: the direct election of the prime minister; the safeguarding
of all Basic Laws so that they could be rescinded only by a two-thirds
or three-fifths Knesset majority; and the establishment of a well-defined
system of judicial review. While the proposal had little chance
of Knesset passage, it aroused renewed interest in the reform
of the Israeli electoral, legislative, and judicial systems (see
Prospects for Electoral Reform , this ch.).
Data as of December 1988
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